Stay of Cancellation of Provider Approval: EEB v Secretary Department of Education

This is a case before the NSW Civil and Administrative Tribunal for a review of a decision by the NSW Regulatory Authority under the National Law (Department of Education) to cancel provider approval under section 31.
The Tribunal decided to stay the cancellation but on conditions:

The ultimate determination of the correct and preferable decision must regard the best interests of the child as paramount.

The National Law facilitates the provision of a national education and care services quality framework for the delivery of education and care services to children.

On an interim basis it is assessed that the protection of children from harm can be mitigated by the imposition of terms and conditions as the price of the stay being granted. That will give effect to protecting the paramount interests of the child.

It is necessary on the evidence which can be determined on this interim application to grant a stay to secure the effectiveness of the determination of the application. The review hearing will be futile if a stay is not granted and the review is successful and in the applicant’s favour.

The matter has been allocated a final hearing date in May 2020. Directions were made to prepare the matter for hearing. At the hearing the Tribunal will be able to determine whether the allegations are established or not and what the correct and preferable decision is having regard to the contested evidence. Any favourable decision made by the Tribunal will be rendered nugatory if the stay is not in place.

It is therefore determined that the stay application should be allowed on the alternative basis proposed by the respondent and to which the applicant agreed.

Order

The order of the Tribunal is that:

(a) The Decision of the Secretary Department of Education (“the respondent”) to cancel the provider approval of EEB (“the applicant”) under the Children (Education and Care Services) National Law (NSW) made on 19 December 2019 is stayed until the resolution of the applicant’s application for external review by the Tribunal (the proceedings 2020/15386) on the following conditions:

(a) The applicant is prohibited from accepting any new enrolments in its education and care service.

(b) The applicant is prohibited from engaging or registering:

(i) any new educators; or

(ii) previously engaged or registered educators (including Marie Sarkis, Solange Loki Samba, Ouahiba Bougharga and Alaf El Ajouz).

(c) The applicant is to suspend the provision of education and care by the following educators:

(i) Olivera Ali Obaid;

(ii) Farah Javed; and

(iii) Rita Saman.

(d) The applicant is to provide proof of the suspension is arising by order 1(c) to the Secretary by 5 pm on 6 February 2020 (paras.58-64(1)).